1. On October 10, 2003, the Inter-American Commission on Human Rights (hereinafter
“the Commission”, “Inter-American Commission”, or the “IACHR”) received a petition
presented by Messrs. Claudio Grossman, Helen Jiménez, Courtney Nogar, Laura
W. Phillips, and Felipe Eduardo Sixto (hereinafter “the petitioners”). Said
petitions argue that the Republic of Cuba (hereinafter “Cuba” or the “State”)
is guilty of failure to comply with its obligations under Articles I (Right
to life, liberty, and personal security), XVIII (Right to a fair trial), and
XXVI (Right to due process of law) of the American Declaration of the Rights
and Duties of Man[1] (hereinafter “the Declaration” or “American
Declaration”) by trying and sentencing to death without due process of law,
and subsequently executing, Lorenzo Enrique Copello Castillo, Bárbaro Leodán
Sevilla García, and Jorge Luis Martínez Isaac (hereinafter the “alleged victims”).

2. The State has not responded to any of the Commission’s requests for information
regarding the admissibility of this case since the Commission began processing
it. Based on its analysis of facts and law, and pursuant to Article 39 of its
current Rules of Procedure,[2] the Commission considers that
the petition meets the formal requirements for admissibility established in
Articles 28 through 37 of its Rules of Procedure and concludes that the instant
case is admissible. The Commission also resolves to publish this report in its
Annual Report to the General Assembly of the OAS and to notify both parties.

II. PROCEEDINGS BEFORE THE COMMISSION

3. On February 18, 2004, the IACHR began processing petition No. 844/2003,
in accordance with its Rules of Procedure in force since May 1, 2001, and transmitted
the pertinent parts of the petition to the State, giving it two months to present
observations and relevant information regarding the matters that had prompted
said communication. To this day, the State has not presented the observations
requested by the Commission.

III. POSITIONS OF THE PARTIES

A. Position of the petitioners

1. Factual allegations of the petitioners

4. The petitioners allege that, on April 2, 2003, 11 Cuban citizens, including
the alleged victims, hijacked a ferry going from La Havana to Regla, with 40
people on board. The petitioners indicate that the intention of the hijackers
was to take control of the ferry and take it to the United States of America.
They add that when the ferry ran out of fuel 45 kilometers from the Cuban coast,
Cuban coastguards proceeded to tow it back to the island. During the journey,
the group maintained control of the boat.

5. The petitioners say that while they were being towed, the group of hijackers
threatened to murder the passengers they were holding hostage, including two
French women tourists. They added that the situation ended without violence
when the security forces encouraged the passengers to throw themselves overboard
and then captured the hijackers. They state that, according to an official note,
the authorities reported that “all those who had been on board were rescued
and saved without so much as a shot or a scratch.”[3]

6. The petitioners point out that the hijackers, including the alleged victims,
were tried by the Court for Crimes against State Security of the People’s Court
of Havana. The Court had applied the specially expedited summary proceeding
contemplated in Articles 479 and 480 of the Criminal Procedure Act. The petitioners
add that the trials took place From April 5 to 8, 2003.

7. According to the petitioners, at the end of the expedited summary trial,
the alleged victims were sentenced to death for violating the “Cuban Law against
Acts of Terrorism” of December 2001. They add that said law was wrongfully applied,
because for the legally defined type of offenses committed by the alleged victims,
the law prescribes imprisonment, not the death penalty. They add that the defense
attorneys for the victims were court-appointed and that “the extremely short
duration of the proceedings reveals that there was not enough time to prepare
an appropriate defense”[4] and that “the convictions do not
mention arguments adduced by the defense and are repeatedly based on juridical
arguments.”[5] According to the petitions these facts would
constitute violations of Articles I, XVIII, and XXVI of the American Declaration.

8. According to the petitioners, the alleged victims appealed against their
death sentences to the Supreme People’s Court, Cuba’s highest judicial organ.
This Court, according to the petitioners, ratified the sentences in a one-day
trial. The petitioners add that in keeping with current laws in Cuba, these
death sentences were submitted for consideration by the Council of State, which
proceeded to ratify them, condemning the alleged victims to death.

9. The petitioners also say that in the early morning of April 11, 2003, following
the decision handed down by the Council of State, the sentences were carried
out and the alleged victims executed.

2. Legal allegations of the petitioners

10. As for the admissibility of the petition, the petitioners maintain that
the IACHR has jurisdiction to examine petitions that indicate presumed violations
by Cuba of human rights proclaimed in the American Declaration. They point out
that said jurisdiction is based on the OAS Charter, which was duly ratified
by Cuba, and by the Rules of Procedure of the Inter-American Commission.

11. The petitioners maintain that the Eighth Meeting of Consultation of Ministers
of Foreign Affairs barred the Government of Cuba from participating in the inter-American
system, but that said decision “did not exclude the Cuban people from the protection
afforded by applicable human rights provisions, especially the American Convention
[…]”[6], nor did it preclude monitoring by the Inter-American
Commission.

12. The petitioners argue that Cuba supported the establishment of the mechanism
for inter-American monitoring of human rights by signing Resolution VIII of
the Fifth Meeting of Consultation of Ministers of Foreign Affairs, which instituted
the IACHR as the organ “charged with furthering respect for such rights.”[7]

13. With respect to exhaustion of domestic remedies, as required by Article
31(1) of the Rules of Procedure of the Commission, the petitioners indicate
that there are no remedies pending exhaustion in Cuba in the instant case. They
also argue that the petition met the deadline for presentation of petitions
referred to in Article 32(1) of the Rules of Procedure of the Commission. In
that connection, they point out that “Judgment No. 11/2003 of the Court for
Crimes against State Security of the People’s Court of Havana–which condemned
the [alleged] victims of this petition to death–was handed down on April 8,
2003. The sentence was ratified by the Council of State on April 10 and the
summary executions carried out on April 11 [, 2003].”[8]

14. The petitioners state further that the petition was not submitted for settlement
to any other international organization of which Cuba is a member and therefore
satisfies the requirement established in Article 33(1)(a) of the Commission’s
Rules of Procedure.

15. The petitioners argue that this petition describes facts that, once proved,
would constitute a violation of rights contained in Articles I, XVIII, and XXVI
of the American Declaration.

b. Position of the State

16. Cuba did not reply to the Inter-American Commission’s request for information,
conveyed in a note of February 18, 2004, which also requested Cuba’s observations
regarding the admissibility of the petition. The Commission confirms that the
deadlines, established in the Rules of Procedure of the Commission, for the
State to provide information regarding this petition have long since passed
without Cuba querying the facts stated in the petition.

IV. ANALYSIS OF JURISDICTION AND ADMISSIBILITY

A. Jurisdiction

17. Cuba has been a state party to the Organization of American States (hereinafter
the "OAS") since July 16, 1952, the date on which it deposited its
instrument of ratification of the OAS Charter. The Commission has maintained
that the Cuban State “is juridically responsible to the Inter-American Commission
in matters that concern human rights” since “it is party to the first international
instruments established in the American hemisphere to protect human rights”
and because under Resolution VI of the Eighth Meeting of Consultation[9]
it was “the present Government of Cuba that was excluded from the inter-American
system, and not the Cuban State.”[10] On that matter, the
IACHR’s position has been that:

[…] when it excluded the Cuban Government from the inter-American system, it
was not the intention of the Organization of American States to leave the Cuban
people without protection. That Government’s exclusion from the regional system
in no way means that it is no longer bound by its international human rights
obligations.

18. The Commission’s jurisdiction derives from the OAS Charter, the Commission’s
Statute, and its Rules of Procedure. According to the Charter, all member states
undertake to respect the fundamental rights of individuals, which in the case
of states that are not party to the Convention are those established in the
American Declaration, which is for these States a source of international obligations.[11]
The Commission’s Statute requires it to pay particular attention to the observance
of the human rights referred to in Articles I (right to life, liberty, and personal
security), XVIII (right to a fair trial), and XXVI (right to due process of
law) of the American Declaration in exercising its powers in relation to countries
that are not parties.[12] Finally, Article 49 of its Rules
of Procedure states that the Commission shall receive and examine any petition
that contains a denunciation of alleged violations of the human rights set forth
in the American Declaration in relation to states that are not parties to the
American Convention on Human Rights (hereinafter the "American Convention").
Consequently, the IACHR has competence ratione materiae, because the petition
contains a denunciation of violations of human rights set forth in the American
Declaration of March 2, 1948.[13]

19. For the above reasons, the Commission considers that it has competence
ratione loci to admit the petition since it alleges violations on Cuban territory
of rights protected by the American Declaration.

20. Furthermore, the Commission has competence ratione temporis to examine
the petition, since it is based on facts that allegedly occurred as of 1997,
when the obligations assumed by the State were binding according to the OAS
Charter and the American Declaration.

21. Accordingly, the Commission has competence ratione personae to examine
the petition. The petitioners are empowered by Article 23 of the Rules of Procedure
of the Commission to lodge petitions with the IACHR. The alleged victims named
in the petition are individuals, whose human rights are protected under the
American Declaration.

B. Requirements for Admissibility

1. Exhaustion of domestic remedies

22. The Rules of Procedure of the Inter-American Commission stipulate that
“in order to decide on the admissibility of a matter, the Commission shall verify
whether the remedies of the domestic legal system have been pursued and exhausted
in accordance with the generally recognized principles of international law.”[14]

23. Concerning this admissibility requirement, the Inter-American Court has
already ruled that it is a mechanism that “allows the State to resolve the problem
under its internal law before being confronted with an international proceeding.
This is particularly true in the international jurisdiction of human rights
[…]”[15]. Likewise,

“[t]he generally accepted principles of international law, to which the rule
of exhaustion of domestic remedies refers, indicate, first, that this is a rule
that may be waived, either expressly or by implication, by the State having
the right to invoke it, as this Court has already recognized [see Viviana Gallardo
et al. (Judgment of November 13, 1981), No. G 101/81. Series A, para. 26]. Second,
the objection asserting non-exhaustion of domestic remedies, to be timely, must
be made at an early stage of the proceedings by the State entitled to make it,
lest a waiver of the requirement be presumed.[16]

24. Similarly, referring to the early stages of the procedure, the Inter-American
Court has ruled that they comprise “the stage for examining the admissibility
of processing by the Commission, that is to say, prior to any consideration
of the merits […]”[17]

25. In the instant case, the petitioners argue that domestic remedies were
all exhausted. For its part, the State has not replied to the arguments of the
petitioners with respect to prior exhaustion of domestic remedies. For this
reason, the Commission considers that in this case the State has tacitly refrained
from raising the exhaustion of domestic remedies objection. The Commission takes
note of the fact that, according to information provided by the petitioners,
the Council of State of Cuba issued a definitive decision on the subject addressed
in this petition.

26. For the above reasons, the Commission decides that the instant case complies
with the requirement of Article 31.1 of its current Rules of Procedure.

2. Deadline for presentation

27. The Rules of Procedure of the Commission establish that “the Commission
shall consider those petitions that are lodged within a period of six months
following the date on which the alleged victim has been notified of the decision
that exhausted the domestic remedies.[18] In the present petition,
the Commission has established the tacit waiver by the Cuban State of its right
to object to failure to exhaust domestic remedies, which means that the requirement
under Article 32.1 of the American Convention is not applicable. In those cases
in which the exceptions to the requirement of prior exhaustion of domestic remedies
are applicable, the petition shall be presented within a reasonable period of
time, as determined by the Commission. For this purpose, the Commission shall
consider the date on which the alleged violation of rights occurred and the
circumstances of each case.[19]

28. In the instant case, the petition was presented on October 10, 2003, six
months after the decision of Cuba’s Council of State of April 10, 2003. Consequently,
the Commission considers that the requirement in Article 32.2 of its Rules of
Procedure was met in the instant case, as the petition was submitted within
a reasonable period of time.

3. Duplication of procedures and res judicata abroad

29. It is not apparent from the file that the subject of the petition is pending
in another international proceeding for settlement or is substantially the same
as one previously studied by this or another international organization. Therefore,
the requirements established by Article 33 of the Rules of Procedure of the
Commission must be met.

4. Characterization of the facts alleged

30. The Commission considers that the allegations of the petitioners concerning
the alleged violation of the rights to a fair trial and due process of law could
constitute a violation of rights protected under Articles 1, XVIII, and XXVI
of the American Declaration.

V. CONCLUSIONS

31. The Commission concludes that the case is admissible and that the Commission
is competent to examine the petitioners’ claim of an alleged violation of Articles
I, XVIII and XXVI of the American Declaration, in accordance with Articles 28-37
and 39 of the Rules of Procedure of the Commission.

32. Based on the foregoing arguments of fact and of law, and without prejudice
to the merits of this case,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

DECIDES:

1. To declare the petition in this case admissible, with respect to Articles
I, XVIII, and XXVI of the American Declaration.

2. To notify the State and the petitioners of this decision.

3. To begin looking into the merits of the question.

4. To publish this decision and to include it in its Annual Report, which will
be presented to the OAS General Assembly.

Done and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., on the … day of the month of … in the
year 2004. (Signature).

Washington, D.C., October 19, 2004

Dissenting and reasoned vote

Petition 844/03

Admissibility

Freddy Gutiérrez

I hereby declare and explain my dissenting vote regarding the decision by
the Inter-American Commission on Human Rights to admit petition 844/03, which
refers to occurrences that apparently took place in the Republic of Cuba.

It is unconceivable that deeds expounded in an abstract, general, and vague
manner, recounted by one side only and expressing a single, exclusive point
of view, with no possibility, past or present, of being contested, for which
the sources are dubious, and which are, one should add, taken from media that
systematically oppose the right of the Republic of Cuba freely to determine
its own destiny as well as its right not to accept outside interference, should
induce the Commission to declare a case admissible without it meeting the requirements
stipulated in the American Convention.

The legal basis on which the description of the deeds rests is flimsy and
insubstantial, particularly since it invokes the American Declaration of 1948
and the Rules of Procedure of the IACHR. There is no universally accepted doctrine
nor peaceful jurisprudence regarding the Declaration, given that, by definition,
it involves adherence to certain values and general principles, which are important
but contained in imperfect norms that establish no punishments, which therefore
relativizes the greater or lesser commitment of states in accepting the enunciation
of the rights enshrined therein. The Declaration has played an enormously valuable
part in the history of civilization, and its contents have to concur with the
American Convention, but it is not licit to use it circumstantially against
a state that has even been denied the possibility of accounting for its departure
from or approximation to the values it once ratified.

Moreover, as I have consistently stated, the operating Rules of Procedure
of the Commission constitute by their nature a sub-legal act, which is binding
upon the Commissioners in the performance of their tasks and functions, but
which may never be construed as an international norm based on pacta sunt servanda
and therefore to be applied obligatorily by the states parties to the American
Convention. Indeed, it is inexplicable and incomprehensible in the interpretation
of law that rules of procedure, resolutions, or instructions of a sub-legal
nature could create duties, rights, and even punishments for states that have
not agreed to their contents. It is necessary to emphasize that the states are
parties to the American Convention and to the Commission’s Statute, and are
therefore bound by what they agreed to, but they cannot be bound by what they
legitimately did not agree to. This is the case of the Rules of Procedure, the
contents of which were not examined, discussed, or ratified by the member states
of the hemispheric Organization. This applies with even greater force to the
Republic of Cuba, which was not allowed to be a state party to the Convention,
or to discuss the Statute, and has no inkling of the existence of Rules of Procedure
that might, apparently, be the basis for some sanction against it.

Perhaps the most serious misapprehension is the failure to refer to the expulsion
of the Republic of Cuba agreed upon by the Organization of American States in
1962. Since then, Cuba cannot validly nominate anyone to a position of responsibility
within the hemispheric Organization, have either voice or vote, elect or be
elected, or exercise any right at all. It is therefore an aberration in fact
and in law to seek to scrutinize and even condemn the acts of one who has been
denied the exercise of his basic powers, of the rights that are intrinsic to
a people, and the rights that are also intrinsic to the man and women who constitute
that people.

It is also contrary to any sound interpretation of the law to seek to initiate,
pursue, and issue a condemnation of someone who cannot defend himself. It is
contrary to the rules of due process contained in the American Convention, the
pillar upon which the Commission stands, that the Republic of Cuba, which is
not cognizant of the contents of any notification, cannot make itself heard,
cannot argue in its defense, cannot contradict the statements of someone calling
himself a party, and which has even been denied the right to be a counterparty,
should be condemned. I should not omit the fact that this act of the Commission
concerns admissibility or inadmissibility of a complaint. The necessary condition
for admitting it or not is that the complaint exists or may exist, and in this
case the Republic of Cuba cannot even be a complainant; ergo, there cannot strictly
be a complaint in the instant case, nor any admission or rejection of admission.

Text Box:

The foregoing arguments explain my dissenting vote in the matter at hand.

Notes__________________

[1] Adopted by the Ninth International Conference of American
States, Bogotá, Colombia, 1948.

[2] Article 39 states that “the facts alleged in the petition,
the pertinent parts of which have been transmitted to the State in question,
shall be presumed to be true if the State has not provided responsive information
during the maximum period set by the Commission under the provisions of Article
38 of these Rules of Procedure, as long as other evidence does not lead to a
different conclusion.”

[9] The complete text of Resolution VI can be found in the
“Eighth Meeting of Consultation of Ministers of Foreign Affairs, Serving as
Organ of Consultation in Application of the Inter-American Treaty of Reciprocal
Assistance,” Punta del Este, Uruguay, January 22 – 31, 1962, Documents of the
Meeting,” Organization of American States, OEA/Ser.F/II.8, doc. 68, pp. 17-19.

[11] 11. I/A Court H.R., Advisory Opinion OC-10/89, of July
14, 1989, Interpretation of the American Declaration of the Rights and Duties
of Man within the Framework of Article 64 of the American Convention on Human
Rights, Ser. A No. 10, paragraphs 43-46.